White v. Deering

BURNETT, J.

The action was to establish a claim against the estate of Sophie P. Comstock, deceased. The claim was properly'presented, but was rejected by the executrix. Suit was thereupon brought in the superior court within the time

[517]

required by the statute, and plaintiff obtained judgment, from which the appeal has been taken.

The first item in the complaint was: “To services rendered in carrying decedent from her room upstairs to lawn and from lawn to her room upstairs at an agreed price of $15 per month, $45.” This was also the exact language of the claim as presented to the executrix. The court permitted this averment of the complaint to be amended by striking out the words, “at an agreed price” and substituting therefor the words, “of the reasonable value.”

This action of the court is the occasion for the contention that the cause of action was changed, for the reason that the claim was based upon an express contract for an agreed price, while the amendment permitted recovery on

quantum meruit.

The basic and vital elements of the cause of action are the services performed and the amount due for said services." As to these elements, the two complaints are identical. Moreover, either the phrase “at an agreed price” or “of the reasonable value” may be eliminated from the original or the amended complaint, respectively, and what remains states a cause of action either upon an express or implied contract. Neither of these phrases is, therefore, material to the statement of a cause of action, and the substitution of one for the other does not change the essential aspect of the ease, although, we may add, that, if it did not appear in the complaint whether there was an express contract, a demurrer might lie for uncertainty. Indeed, the question has been carefully considered by the appellate courts of this state and a conclusion reached that is directly opposed to appellant’s contention herein, and it should be sufficient as to the point to cite:

Merchants’ C. Agency

v.

Gopcevic,